WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

To revise criminal offence
provisions in legislation administered by agencies within the
Agriculture, Fisheries and Forestry portfolio, to harmonise them
with the principles of criminal responsibility as set out in
Chapter 2 of the Criminal Code Act 1995 (the Criminal
Code).

The Gibbs Committee was established on 11
February 1987 by then Attorney-General, Hon. Lionel Bowen MP. Among
its terms of reference was the need for 'provisions relating to
criminal responsibility to be contained in a future Act
consolidating the criminal laws of the Commonwealth.'(1)
The Committee's Interim Report on Principles of
Criminal Responsibility and Other Matters commented that the
methods then used to adopt principles of criminal responsibility
for Commonwealth offences had led to 'obscurity and
inconsistency'.(2) In relation to offences under the
Crimes Act 1914 (Cwlth), common law principles of criminal
responsibility applied. However, the greatest number of
Commonwealth criminal offences are contained in other statutes. In
relation to these offences, the effect of the Judiciary Act
1903 was that a court exercising federal jurisdiction under a
Commonwealth criminal law other than the Crimes Act determined
questions of criminal responsibility according to the law of the
particular State or Territory. In other words, a court sitting in a
common law jurisdiction such as New South Wales applied common law
principles, whereas a court sitting in a Griffith Code jurisdiction
such as Queensland applied Code principles. The Gibbs Committee
recommended that a Commonwealth law should be enacted to codify all
relevant principles of criminal responsibility in order:

... to achieve uniformity of principle
throughout Australia in Commonwealth criminal trials and ... make
the relevant principles more readily accessible and, it is hoped,
more clear and certain.(3)

The Model Criminal Code Project commenced in the
early 1990s. In part it was a response to the Review of
Commonwealth Criminal Law undertaken by the Gibbs Committee. It
also reflected the fact that reviews of State and Territory
criminal law were taking place in a number of Australian
jurisdictions. In June 1990, the Standing Committee of
Attorneys-General agreed to put the question of the development of
a uniform criminal code on its agenda.

The Model Criminal Code Project has two aspects.
The first is to develop model State and Territory criminal law
(which can be adapted for Commonwealth purposes). The second is the
development of other model law projects. These include model
forensic procedures legislation.

Chapters of the Model Code are drafted by the
Model Criminal Code Officers Committee(4) (MCCOC) in
discussion paper and final (report) form.(5) A report is
generally compiled after public consultation and examination by the
Standing Committee of Attorneys-General.

The first significant Model Criminal Code
chapter developed by MCCOC and approved by the Standing Committee
of Attorneys-General was Chapter 2 (Principles of Criminal
Responsibility). This chapter forms the substantive part of the
Criminal Code Act 1995. Chapter 2 can be regarded as the
foundational chapter for Commonwealth criminal law. Its purpose is
to revise, codify and simplify principles of criminal
responsibility for Commonwealth criminal law purposes.

With the passage of the Criminal Code
an interim and transitional period effectively commenced. The
principles of criminal responsibility contained in Chapter 2
generally adopt a common law approach to criminal responsibility
which is based on subjective fault elements. Thus, as an interim
measure, the Commonwealth Parliament passed the Crimes
Amendment Act 1995 pending the application of the Criminal
Code to pre-existing Commonwealth offences. The Crimes
Amendment Act 1995 provides that common law principles of
criminal liability apply to all Commonwealth offences. The reasons
for passing the Crimes Amendment Act 1995 were two-fold.
First, it was intended to remedy the anomalous situation mentioned
earlier in which principles of criminal responsibility for
Commonwealth offences were either determined by the common law (if
they were offences under the Crimes Act 1914) or by the
law of the State or Territory in which proceedings arose if the
offence was created under another Commonwealth law. Second, it was
enacted to 'avoid a situation in where there would be three sets of
principles in existence during the transitional period-the code
principles, the Crimes Act use of the common law, and the
application of state and territory law in relation to other
offences.'(6)

The Criminal Code then allowed
implementation of Chapter 2 principles of criminal responsibility
to be a staggered process. First, Chapter 2 applied to all offences
against the Criminal Code. Since 1995 the Commonwealth
Parliament has passed a number of new Criminal Code
chapters. These include the Criminal Code Amendment (Bribery of
Foreign Public Officials) Act 1999, the Criminal Code
Amendment (Slavery and Sexual Servitude) Act 1999 and the
Criminal Code Amendment (Theft, Fraud, Bribery and Related
Offences) Act 2000. Second, Chapter 2 applied to all new
Commonwealth criminal offences from 1 January 1997. Third, it will
apply to pre-existing Commonwealth offences from 15 December 2001.
In this regard, there has been some slippage in the Commonwealth's
original timetable. When the Criminal Code Act was passed in 1995,
it was planned that Chapter 2 would apply to pre-existing
Commonwealth offences from 16 March 2000. However, this deadline
could not be met and so the Criminal Code Amendment
(Application) Act 2000 was passed to extend the application
date to 15 December 2001.

The Criminal Code began the process of
codifying Commonwealth criminal law. It contains two chapters.
Chapter 1 deals with codification. Chapter 2 deals with principles
of criminal responsibility. Principles of criminal responsibility
are divided into physical elements and fault elements. This
terminology reflects the traditional division of criminal offences
into 'actus reus'(7) and 'mens rea'.(8) The
physical elements of an offence are matters such as conduct, the
circumstance in which conduct occurs or the result of conduct.
Fault elements relate to a person's state of mind eg intention,
knowledge, recklessness and negligence. For each physical element
of an offence, the prosecution must prove that the defendant had
the requisite fault element (if proof of a fault element is
required).

Chapter 2 supplies default fault elements which
are applied to the various physical elements of offences. For
example, the default fault element for a physical element of
conduct is intention. However, this does not prevent a particular
law which creates an offence from specifying that different fault
elements will apply in particular cases or from using non-Code
fault elements.(9) It may also be the case that an
offence contains no fault elements. Such an offence is termed an
offence of strict liability or an offence of absolute liability.
Chapter 2 provides that defences, including a defence of mistake of
fact, are available for strict liability offences, whereas a
defence of mistake of fact is not available in the case of an
absolute liability offence. Chapter 2 also states that if it is
intended that an offence is one of strict liability or absolute
liability, then the law creating the offence must make an explicit
statement to this effect.(10)

Other matters dealt with in Chapter 2 include
extension of criminal responsibility, such as attempt, complicity
and conspiracy, proof of criminal responsibility and principles of
corporate criminal responsibility.

In relation to proof of criminal responsibility
Chapter 2 provides that the prosecution bears a legal burden of
proving every element of an offence.(11) A legal burden
is defined as the burden of proving the existence of the matter.
The standard of proof on the prosecution is 'beyond reasonable
doubt'.(12) Chapter 2 also provides that a defendant
bears an evidential burden of proof unless a law expressly
indicates that the defendant bears a legal burden.(13)
An evidential burden in relation to a matter is the burden of
adducing evidence suggesting there is a reasonable possibility that
the matter exists or does not exist.(14)

Part 2.5 deals with the important issues of
corporate criminal responsibility. It sets a basic standard of
responsibility for bodies corporate in relation to general
offences.

The code introduces the concept that criminal
responsibility should attach to bodies corporate where the
corporate culture encourages situations which lead to the
commission of offences. The provisions make companies accountable
for their general managerial responsibilities and policy. It
provides that negligence may be proven by failure to provide
adequate communication within the body corporate.

In speaking about this part I must stress that
it is still open to the legislature to employ reverse onus of proof
provisions or strict liability for offences where the normal rules
of criminal responsibility are considered inappropriate.

At the federal level this will need to occur in
a number of important areas where corporations are the main
players, such as environmental protection, where the potential harm
of committing the offence may be enormous and the breach difficult
to detect before the damage is done. For example, the government is
not planning to water down the requirements of section 65 of the
Ozone Protection Act 1989 in regard to the matters covered
by that act. Part 2.5 concerns general principles suitable for
ordinary offences. It will be the basis of liability if no other
basis is provided.(15)

Since 1995, the Commonwealth has been examining
all the offences on its statute books with a view to revising them
so that they harmonise with Chapter 2, modifying the application of
Chapter 2 in relation to particular offences or clarifying how
Chapter 2 will apply. For example, if there is no express mention
in a pre-existing offence provision that an offence is one of
strict or absolute liability, then certain fault elements will
apply to that offence once Chapter 2 is applied. In those cases
although it may have always been intended that a particular offence
is one of strict or absolute liability then unless the offence
provision is appropriately amended, a prosecutor would have to
prove a fault element or elements where previously no such proof
was required.

In addition to the present Bill, a number of
other portfolio bills have been introduced into the Parliament as
part of the same process. A number of these have already been
enacted.(16) Those which remain before the Parliament
(at the time of writing) include the Finance and Administration
Legislation Amendment (Application of Criminal Code) Bill (No. 1)
2001, Migration Legislation Amendment (Application of
Criminal Code) Bill 2001, Treasury Legislation Amendment
(Application of Criminal Code) Bill (No. 2) 2001, Treasury
Legislation Amendment (Application of Criminal Code) Bill (No. 3)
2001, and the Reconciliation and Aboriginal and Torres
Strait Islander Affairs Legislation Amendment (Application of
Criminal Code) Bill 2001. In each case, the Bills amend
legislation administered by a particular portfolio so that Chapter
2 can apply to each offence provision without untoward or
unintended consequences from 15 December 2001.

Re-organising and reconstructing offence provisions by
identifying their constituent physical elements in order to clarify
defences. In general, the default fault elements contained in the
Criminal Code will then apply to each physical element.
The amendments also remove fault elements which, under the
Criminal Code, would be inappropriate for particular
physical elements, and

Repealing certain offence provisions that duplicate general
provisions in the Criminal Code.

Some amendments expressly modify the application of the
Criminal Code-by identifying some offences as offences of
strict liability and indicating when a defendant will be under a
legal rather than evidential burden.

The Agricultural and Veterinary Chemical
Products (Collection of Interim Levy) Act 1994 (Interim Levy Act)
provides for the assessment and collection of levies imposed on
agricultural and veterinary chemicals. It forms part of a package
of Acts that collectively provide 'interim' cost recovery
arrangements for the National Registration Scheme for Agricultural
and Veterinary Chemicals - a uniform scheme for the evaluation,
registration and control of agricultural and veterinary chemicals
in Australia. The operation of this registration scheme is governed
by the provisions of the Agricultural and Veterinary Chemicals
(Administration) Act 1992 and administered by the National
Registration Authority for Agricultural and Veterinary Chemicals
('NRA'). The NRA is the agency responsible for the assessment and
registration of agricultural and veterinary chemical products prior
to sale and their regulation up to and including the point of
retail sale.

When the NRA was established in June 1993, it
was largely funded by the Commonwealth. In line with government
policy targets, full cost recovery was achieved in the 1995-96
financial year. The costs of running the NRA's National
Registration Scheme are recovered through fees and levies paid by
the agvet chemicals industry. The NRA recovers most of its costs
through collecting: application fees; annual registration renewal
fees; and levies on disposals of registered products. 'Disposals'
refers to Australian products sold, used or given away in Australia
by the manufacturer; and imported products sold, used or given away
in Australia by the importer.

The amendments effected by the Bill do four
major things. First, they apply Chapter 2 of the Criminal
Code to all offences against the Interim Levy Act. Second,
they replace references to certain Crimes Act provisions. Third,
they clarify the defence of reasonable excuse presently contained
in some sections of the Act. Fourth, they identify a number of
offences as offences of strict liability.

Item 1 amends the Interim Levy
Act by removing references in the Interim Levy Act to
sections of the Crimes Act 1914 which deal with ancillary
offences and replacing them with references to sections in the
Criminal Code dealing with these matters. The Crimes Act
provisions will ultimately be repealed on 15 December 2001. The
relevant sections of the Criminal Code commenced operation
in May 2001 with the commencement of the Law and Justice
Legislation Amendment (Application of Criminal Code) Act
2001.(17)

Item 2 amends the Interim
Levy Act by inserting new section 6A which
applies Chapter 2 of the Criminal Code to all offences
against the Act.

Items 3-10 re-structure offence
provisions in order to clarify their associated defence of
'reasonable excuse'. At present there is a risk that the provision
could be interpreted as an element of the offence, which would have
to be proved by the prosecution. The relocation of the element of
'reasonable excuse' is necessary to ensure that it is clear that
reasonable excuse is a defence.

The relevant offence provisions are contained in
subsections 12(2), 17(2), 18(4) and 21(3) of the Interim Levy
Act. In each case, the amendments excise the element of
'without reasonable excuse' from the offence provision and place it
in a new subsection. The reason for the excision is to ensure that
the words are not read as an element of the offence (which would
have to be proved by the prosecution) but clearly identified as a
defence.

Items 4, 6, 8, 10, 11 insert
new subsections which specify that particular offences are offences
of strict liability. A strict liability offence is one where it is
not necessary for the prosecution to prove fault, only that the
defendant engaged in the relevant physical elements of the offence.
The Criminal Code supplies a defence of mistake of fact to
a strict liability offence.(18)

Item 4 inserts new
subsection 12(2B) which states that a subsection 12(2)
offence is an offence of strict liability. This is an offence of
failing to comply with a requirement of the NRA to calculate the
total leviable value in respect of leviable disposals of a chemical
product for a year and the amount of levy payable, and to notify
the NRA of the results and basis of the calculations.

Item 6 inserts new
subsection 17(4) which states that a subsection 17(2)
offence is an offence of strict liability. This is an offence of
failing to comply with a requirement from the NRA for information
regarding the disposal (ie., sale or use) of a leviable product. In
particular it is an offence in these circumstances to refuse or
fail to provide information relating to the importation,
manufacture or disposal of a product, necessary to determine the
total annual leviable value for that product.

Item 8 inserts new
subsection 18(6) which states that a subsection 18(4)
offence is an offence of strict liability. This is an offence of a
retired inspector failing to return an identity card.

Item 10 inserts new
subsection 21(5) which states that a subsection 21(3)
offence is an offence of strict liability. This is an offence of
refusing or failing to comply with a requirement to give
information or produce documents requested by an inspector.

Item 11 inserts new
subsection 34(2) which states that a subsection 34(1)
offence is an offence of strict liability. This is an offence of
failure to keep and/or retain records relating to the importation,
manufacture or disposal of a leviable product.

Amendments to the Agricultural
and Veterinary Chemical Products (Collection of Levy) Act
1994

This Act provides for the assessment and
collection of levies imposed on agricultural and veterinary
chemicals.

It forms part of a package of six Acts that
collectively provide cost recovery arrangements for the National
Registration Scheme for Agricultural and Veterinary Chemicals - a
uniform scheme for the evaluation, registration and control of
agricultural and veterinary chemicals in Australia.

The NRA imposes levies on disposals of
registered agvet chemical products through three Acts:
Agricultural and Veterinary Chemical Products Levy Imposition
(General) Act 1994, Agricultural and Veterinary Chemical
Products Levy Imposition (Excise) Act 1994, and
Agricultural and Veterinary Chemical Products Levy Imposition
(Customs) Act 1994. Levies are collected under the
Agricultural and Veterinary Chemicals Products (Collection of
Levies) Act 1994. The Act's Regulations prescribe the levy
rates, which are based on a product's disposals for each calendar
year. 'Disposals' refers to Australian products sold, used or given
away in Australia by the manufacturer; and imported products sold,
used or given away in Australia by the importer.

The amendments effected by the Bill do four
major things. First, they apply Chapter 2 of the Criminal
Code to all offences against the Act. Second, they replace
references to certain Crimes Act provisions. Third, they clarify
the defence of reasonable excuse presently contained in some
sections of the Act. Fourth, they identify a number of offences as
offences of strict liability.

Item 12 amends the Agricultural
and Veterinary Chemical Products (Collection of Levy) Act 1994
(Levy Act) by removing references in the Levy Act to sections of
the Crimes Act 1914 which deal with ancillary offences and
replacing them with references to sections in the Criminal
Code dealing with these matters. The Crimes Act provisions
will ultimately be repealed on 15 December 2001. The relevant
sections of the Criminal Code commenced operation in May
2001 with the commencement of the Law and Justice Legislation
Amendment (Application of Criminal Code) Act
2001.(19)

Item 13 amends the Levy
Act by inserting new section 5A which applies
Chapter 2 of the Criminal Code to all offences against the
Act.

Items 14, 16, 18 re-structure
offence provisions in order to clarify their associated defence of
'reasonable excuse'. At present there is a risk that the provision
could be interpreted as an element of the offence, which would have
to be proved by the prosecution. The relocation of the element of
'reasonable excuse' is necessary to ensure that it is clear that
reasonable excuse is a defence.

The relevant offence provisions are contained in
subsections 15(2), 20(3), and 23(3) of the Levy Act. In each case,
the amendments excise the element of 'without reasonable excuse'
from the offence provision and place it in a new subsection. The
reason for the excision is to ensure that the words are not read as
an element of the offence (which would have to be proved by the
prosecution) but clearly identified as a defence.

Items 15, 17, 19, 20 insert new
subsections which specify that particular offences are offences of
strict liability. A strict liability offence is one where it is not
necessary for the prosecution to prove fault, only that the
defendant engaged in the relevant physical elements of the offence.
The Criminal Code supplies a defence of mistake of fact to
a strict liability offence.(20)

Item 15 inserts new
subsection 15(2B) which states that subsection 15(2) is an
offence of strict liability. This is an offence of failing to
comply with a requirement of the NRA to calculate the total
leviable value in respect of leviable disposals of a chemical
product for a year and the amount of levy payable, and to notify
the NRA of the results and basis of the calculations.

Item 17 inserts new
subsection 20(5) which states that subsection 20(3) is an
offence of strict liability. This is an offence of refusing or
failing to comply with a requirement from the NRA to provide
information regarding the importation, manufacture or disposal of a
chemical product, necessary to determine the total annual leviable
value for that product.

Item 19 inserts new
subsection 23(5) which states that subsection 23(3) is an
offence of strict liability. This is an offence of refusing or
failing to comply with a requirement to give information or produce
documents requested by an inspector.

Item 20 inserts new
subsection 36(2) which states that subsection 36(1) is an
offence of strict liability. This is an offence of failure to keep
and/or retain records relating to the importation, manufacture or
disposal of a leviable product.

Amendments to the Agricultural
and Veterinary Chemicals (Administration) Act 1992

This Act established the National Registration
Authority for Agricultural and Veterinary Chemicals (NRA) which
administers Commonwealth/State/Territory laws relating to
agricultural and veterinary chemical products where those laws
confer functions and powers on the NRA.

Prior to the introduction of the
Agricultural and Veterinary Chemicals Act 1988 there was
no specific Commonwealth legislation for the clearance and
registration of new agricultural and veterinary chemicals. The then
non-statutory scheme provided for clearance and registration to be
carried out by Commonwealth and State technical committees. This
scheme was considered unsatisfactory as it did not eliminate
duplication of laws and procedures between the Commonwealth and
States (eg. chemicals were frequently re- assessed at State
level).

In brief, the amendments in the Bill apply the
principles of criminal responsibility found in Chapter 2 of the
Criminal Code to offences under the Agricultural and
Veterinary Chemicals Administration Act ('Agvet Administration
Act'), re-structure and re-word some offence provisions into
their constituent physical elements, as well as identify certain
offences as offences of strict liability.

Item 21 amends the Agvet
Administration Act by inserting new section
5A which applies Chapter 2 of the Criminal Code
to all offences against the Act, with the exception of the
principles of corporate criminal responsibility contained in
Chapter 2.5 of the Code. Existing section 69EU relating to
corporate criminal responsibility is not amended by the Bill.

Items 22-25 and 28-37 excise
the element of reasonable excuse from subsections 69B(1), 69C(5),
69EB(6), 69EN(3), 69EP(6), 69EP(7), 69F(5) of the AgvetAdministration Act and place it in new subsections.

These offence provisions are contained within
Part 7A of the Act which deals with the importation, manufacture
and export of chemicals. Section 69B creates offences of importing
an active chemical constituent or chemical product (that is neither
registered nor exempt) without the approval of the NRA. Section 69C
creates an offence of breaching a restriction or conditions set out
in the regulations concerning the dealing with (ie. importing,
manufacturing, or exporting) a chemical product or active
constituent which is the subject of a prescribed international
agreement or arrangement. Subsection 69EB(6) creates an offence of
refusing or failing to comply with a direction given by an
inspector in the course of a search of premises aimed at checking
compliance with Part 7A or the Act. Section 69EN creates an offence
of refusing or failing to comply with a requirement made by an
inspector to give information to the inspector and to produce
documents. Subsection 69EP(6) is an offence of contravening a
direction given by the NRA at a hearing prohibiting or restricting
the publication of submissions or evidence given at a hearing,
whether in public or in private, or of matters contained in such
submissions or evidence or in documents produced at such a hearing.
Subsection 69EP(7) is an offence of being present at a private
portion of a hearing without being a member of the staff of the NRA
or being a person authorised by the NRA to attend. Subsection
69F(5) is an offence of failing to return an identity card to the
NRA upon retirement.

Items 23, 25, 26, 27, 29, 31, 33,
37 insert new subsections into the above provisions to
expressly identify particular offences as offences of strict
liability, or as containing elements of strict liability. This
means that the prosecution does not have to prove a fault element
in relation to all or some of the physical elements of the
offences, only that the defendant engaged in the relevant physical
elements of the offence. The Criminal Code supplies a
defence of mistake of fact to a strict liability
offence.(21)

Amendments to the Agricultural
and Veterinary Chemicals Code Act 1994

This Act provides for the evaluation, approval,
registration and control and supply of agricultural and veterinary
chemicals in the Australian Capital Territory and prescribed
Territories. The Act forms part of a package of legislation
directed at the regulation of agricultural and veterinary chemicals
in the Territories. Collectively, this package provides a scheme
for the evaluation, registration and control of agricultural and
veterinary chemicals under an 'Agvet Code' in the Australian
Capital Territory and prescribed Territories. This Act applies only
to the Australian Capital Territory and prescribed Territories by
virtue of s.7 of the Agricultural and Veterinary Chemicals Code
Act 1994 (Code Act). The Agricultural and Veterinary Chemicals
Code (Agvet Code), set out in the Schedule, was adopted by the
enactment of complementary legislation by each State and the
Northern Territory. The evaluation, approval, registration and
control and supply of agricultural and veterinary chemicals is
administered uniformly across Australia by the NRA.

In brief, the amendments in the Bill apply the
principles of criminal responsibility found in Chapter 2 of the
Criminal Code to offences under the Agvet Code
Act, re-structure and re-word some offence provisions into
their constituent physical elements, identify certain offences as
offences of strict liability, and insert notes as to legal burden
and evidential burden. Other amendments remove or replace
inappropriate fault elements and clarify defences.

Item 38 amends the Code Act by
removing references to sections of the Crimes Act 1914
which deal with ancillary offences and replacing them with
references to sections in the Criminal Code dealing with
these matters. The Crimes Act provisions will ultimately be
repealed on 15 December 2001. The relevant sections of the
Criminal Code commenced operation in May 2001 with the
commencement of the Law and Justice Legislation Amendment
(Application of Criminal Code) Act 2001.(22)

Item 39 applies Chapter 2 of
the Criminal Code, by inserting new section
8A. This section applies Chapter 2 to all offences against
the Act, with the exception of the principles of corporate criminal
responsibility contained in Chapter 2.5 of the Code. Existing
section 151 relating to corporate criminal responsibility is not
amended by the Bill.

Items 40, 41, 42, 44, 45 insert
new subsections to identify particular offences as offences of
strict liability. A strict liability offence is one where it is not
necessary for the prosecution to prove fault, only that the
defendant engaged in the relevant physical elements of the offence.
The Criminal Code supplies a defence of mistake of fact to
a strict liability offence.(23)

Item 40 inserts new
subsection 26(1A) which states that subsection 26(1) is an
offence of strict liability. This is an offence of failing to
inform the NRA in circumstances where a person has reasonable cause
to believe that a matter recorded in certain registers is not
correct in a material respect.

Item 41 inserts new
subsection 32(3A) which states that subsection 32(3) is an
offence of strict liability. Item 42 inserts
new subsection 33(2A) which states that subsection
33(2) is an offence of strict liability. Item 44
inserts new subsection 55(6A) which has the effect
of applying strict liability to a specified physical element of
circumstance of an existing offence provision contained in section
55. Item 45 inserts new subsection
61(2) which states that subsection 61(1) is an offence of
strict liability.

Items 43, 48, 51 make amendments in
order to replace inappropriate fault elements contained in
offence provisions in paragraph 55(4)(b), subsections 74(1), and
75(1) of the Act respectively. In all cases the phrase 'for the
purpose' is replaced with 'with the intention'. The change is avoid
potential ambiguities associated with the phrase 'for the purpose'
(either meaning 'with the result that' or 'with the intention
of').

Items 46, 47, 70, 71, 77, 78, 83-86, 89,
90-96, 98-109 re-structure offence provisions in order to
clarify their associated defence of 'reasonable excuse'. In each
case, the amendments excise the element of 'without reasonable
excuse' from the offence provision and place it in a new
subsection. The reason for the excision is to ensure that this
phrase is not read as an element of the offence (which would have
to be proved by the prosecution), but is clearly identified as a
defence.

Items 47, 69, 76, 84, 86, 88, 97, 99,
101, 103, 105, 107, 109, 110, 117, 119 insert new
subsections to expressly identify particular offences as offences
of strict liability, or as containing elements of strict liability.
This means that the prosecution does not have to prove a fault
element in relation to all or some of the physical elements of the
offences, only that the defendant engaged in the relevant physical
elements of the offence. The Criminal Code supplies a
defence of mistake of fact to a strict liability
offence.(24)

Items 49, 52, 54, 56, 58, 60, 62, 64,
80, 81, 84, 86, 88, 90, 92, 94, 96, 99, 101, 103, 105, 107, 109,
113, 114, 117 all insert a standard note after offence
provisions which present defences, that the defendant bears an
evidential burden if s/he wishes to rely upon such
defences. For example, the offence provision in section 74 of the
Act, of possession or custody of unapproved active chemical
constituents for the purpose of supply provides four specific
defences, such as subsection 74(1)(b) that the 'the substance is
exempted by the NRA from the operation of this section'. In event
of a prosecution under section 74, a defendant wishing to rely upon
this defence would bear a burden of introducing sufficient evidence
to merely raise the issue of whether the chemical constituents in
question had been exempted by the NRA. According to Gilles in
The Law of Evidence in Australia, where the evidential
burden applies to a defendant, s/he must raise a prima
facie case as to the existence of the purported fact, i.e.,
the evidence raised must be such as to make the existence of the
fact a live issue. This does not require the defendant to prove the
matter raised, but merely to introduce or point to some evidence
sufficient to raise the issue as a genuine issue.(25)
The effect of the evidentiary burden on a defendant is that s/he
cannot raise frivolous defences, but not that s/he must
comprehensively prove such matters beyond reasonable doubt or even
on the balance of probabilities.(26)

Items 50, 53, 55, 57, 59, 61, 63, 65,
68, 82 all insert a standard note after offence provisions
which present defences, that the defendant bears a legal
burden if s/he wishes to rely upon such defences. For example,
Item 50 inserts a note at the end of subsection
74(3) to the effect that the defendant bears a legal burden in
relation to the matter in subsection (3), which provides in
relation to the offence in subsection 74(1) of having possession or
custody of unapproved active chemical constituents for the purpose
of supply, as follows:

It is a defence to a prosecution of a person for
an offence against subsection (1) if the person proves that at the
relevant time the person did not know, and could not reasonably be
expected to have known, that the substance was not an approved
active constituent.

This is an example of a situation where a
defendant wishing to raise this defence bears a greater burden of
proving sufficient facts to establish the defence, in this context
a legal burden as opposed to an evidential burden. Professor Fisse
writes:

In some situations a defendant carries more than
an evidentiary burden of proof. Where the law makes available...an
affirmative defence, it imposes upon him the persuasive burden of
proving that defence. The quantum required of him is proof on the
balance of probability which is the same as the quantum required of
a litigant in a civil action.(27)

Further amendments are aimed at re-organising
and reconstructing existing offence provisions in order to clarify
defences (items 66, 67, 72, 73, 74, 76, 79, 80, 87, 88,
111, 113, 115, 117). These existing statute specific
defences - such as actions authorised by a permit - are retained,
but are placed in separate subsections in order to ensure that
various phrases are interpreted as a defence and not as an element
of the offence (which would have to be proved by the
prosecution).

Items 112, 116, 118 propose the
amendment of fault elements of three offence provisions. In each
case, the amendments remove the word 'recklessly'. As presently
worded the provisions suggest that the fault element of
recklessness applies to the physical element of conduct in the
offences. However, recklessness is not applied by Chapter 2 of the
Criminal Code to the physical element of conduct. Removal
of the word 'recklessly' is thus designed to harmonise the physical
and fault elements in the offences with Chapter 2 of the
Criminal Code. Following the removal of the word
'recklessly', the Criminal Code's default fault elements
apply to each physical element of the offences. These default fault
elements are intention in the case of conduct, and recklessness in
the case of circumstance or result.(28) The Explanatory
Memorandum states:

'Intentionally' is also deleted. In the absence
of any stated fault elements, the default fault elements will apply
because of Section 5.6 of the Criminal Code. The result of
this is that intention will be the applicable fault element for any
physical elements of conduct...(29)

Amendments to the Australian
Meat and Live-stock Industry Act 1997

This Act forms part of a package of legislation
that restructured the regulatory framework of the Australian meat
and livestock industry. The major provisions provide:

for the continuation of existing exporting licensing, quota,
and enforcement provisions under the administration of Department
of Primary Industries and Energy, rather than the Australian Meat
and Live-stock Corporation, and

the Minister with power to declare a body to be either the
industry marketing or research body for the purposes of receipt of
levy/charge amounts or eligible to receive Commonwealth matching
research and development funds.

Items 120 and
121 identify offences of strict liability, by the
insertion of new subsections 47(4) and 49(4).
These are offences of failing to comply with a requirement to give
information to, or to produce documents to an authorised officer
under subsection 47(1), and of failing to return an identity card
upon retirement.

Amendments to the Australian
Wine and Brandy Corporation Act 1980

This Act created the Australian Wine and Brandy
Corporation. It has objects including the promotion and control of
the export of grape products from Australia; and the sale and
distribution, after export, of Australian grape products. It is
also intended to enable Australia to fulfil its obligations under
prescribed wine-trading agreements. The Act provides the
Corporation with the powers to control the export of wine by means
of the grant or withholding of approved carrier status.

The Act contains 'labelling integrity'
provisions that are designed to ensure the truth, and the
reputation for truthfulness, of statements made on wine labels,
about the vintage, variety or geographical indication of wine
manufactured in Australia. These labelling requirements are linked
to extensive recording obligations imposed on wine manufacturers
for record keeping in relation to manufacture, sales, disposal and
transfer of wine products.

In short, the amendments contained in the Bill
apply Chapter 2 (other than those parts of the Code that deal with
principles of corporate criminal responsibility) to offences under
the Wine and Brandy Corporation Act. Second, they replace
references to certain Crimes Act provisions. Third, they clarify
the defence of reasonable excuse presently contained in some
sections of the Act. Fourth, they identify a number of offences as
offences of strict liability. Fifth, the Bill seeks to correct a
number of offence provisions which are not in harmony with the
approach taken by the Criminal Code by altering the fault
elements of these offence provisions.

Item 123 amends the
Australian Wine and Brandy Corporation Act by inserting
new section 4B which applies Chapter 2 of the
Criminal Code to all offences against the Act, with the
exception of the principles of corporate criminal responsibility
contained in Chapter 2.5 of the Code. Existing section 44A relating
to corporate criminal responsibility is not amended by the
Bill.

Items 124, 128, 129, 131, 136,
137 insert new subsections to expressly identify
particular offences as offences of strict liability, or as
containing elements of strict liability. This means that the
prosecution does not have to prove a fault element in relation to
all or some of the physical elements of the offences, only that the
defendant engaged in the relevant physical elements of the offence.
The Criminal Code supplies a defence of mistake of fact to
a strict liability offence.(30)

Items 125, 132, 133, 134
propose the removal of inappropriate fault elements in offence
provisions which are inconsistent with the Criminal Code.
Item 125 proposes the amendment of fault elements
of an offence against paragraphs 39ZAAA(1)(a) and (b). The
amendment would remove the phrase 'knowingly or recklessly'. As
presently worded the provisions suggest that the fault elements of
knowledge and recklessness apply to the physical element of conduct
in the offences. However, neither knowledge nor recklessness are
applied by Chapter 2 of the Criminal Code to the physical
element of conduct. Removal of the words 'knowingly or recklessly'
is thus designed to harmonise the physical and fault elements in
the offences with Chapter 2 of the Criminal Code.
Following the removal of the words 'knowingly or recklessly', the
Criminal Code's default fault elements apply to each
physical element of the offences. These default fault elements are
intention in the case of conduct, and recklessness in the case of
circumstance or result.(31)

Items 132, 133, 134 propose the
amendment of fault elements of three offence provisions. In each
case, the amendments remove the word 'knowingly'. As presently
worded the provisions suggest that the fault element of knowledge
applies to the physical element of conduct in the offences.
However, knowledge is not applied by Chapter 2 of the Criminal
Code to the physical element of conduct. Removal of the word
'knowingly' is thus designed to harmonise the physical and fault
elements in the offences with Chapter 2 of the Criminal
Code. Following the removal of the word 'knowingly', the
Criminal Code's default fault elements apply to each
physical element of the offences. These default fault elements are
intention in the case of conduct, and recklessness in the case of
circumstance or result.(32)

Items 126, 127, 130, 131, 135,
136 re-structure offence provisions in order to clarify
their associated defence of 'reasonable excuse'. In each case, the
amendments excise the element of 'without reasonable excuse' from
the offence provision and place it in a new subsection. The reason
for the excision is to ensure that this phrase is not read as an
element of the offence (which would have to be proved by the
prosecution), but is clearly identified as a defence.

Item 138 amends paragraph
44A(9)(b) of the Act by removing references to sections of the
Crimes Act 1914 which deal with ancillary offences and
replacing them with references to sections in the Criminal
Code dealing with these matters. The Crimes Act provisions
will ultimately be repealed on 15 December 2001. The relevant
sections of the Criminal Code commenced operation in May
2001 with the commencement of the Law and Justice Legislation
Amendment (Application of Criminal Code) Act
2001.(33)

Amendments to the Biological
Control Act 1984

This Act created procedures for the proposal and
implementation of biological control programs of invasive alien
species.(34) In other words, the Act applies a
regulatory scheme to proposals to control pest species ('target
organisms') by biological means, such as where those pest species
can be controlled by the release of other kinds of live organisms
('agent organisms'). The operation of the Act is not limited to
species that are a threat to agriculture. The Biological
Control Act 1984 provides for the biological control of pests
primarily in the Australian Capital Territory.

Under the Act, if there is any evidence that
persons or the environment would be adversely affected by the
release of an organism or the control of the target organism, and
there has not been an adequate inquiry into these effects, then the
Biological Control Authority can arrange for an inquiry to be
conducted. An inquiry examines, from the broad community viewpoint,
the overall benefits and disadvantages of declaring organisms of
the kind to which the inquiry relates to be target organisms or
agent organisms.

Action for declarations can be commenced by any
person applying to a Biological Control Authority, or by the
Agriculture and Resource Management Council of Australia and New
Zealand (ARMCANZ). In the Commonwealth case, the Biological Control
Authority is the Minister for Primary Industries and Energy.

If there is any evidence that any persons or the
environment would be adversely affected by the release of the
proposed agent, or the control of the proposed target and there has
not been adequate investigation or inquiry into that effect, the
Biological Control Authority may, with the unanimous agreement of
ARMCANZ, direct a Commission of Inquiry to be held under the
Biological Control Act 1984.

State and the Northern Territory Biological
Control Authorities can gazette the Commonwealth Act as a 'relevant
Act' and make similar declarations of target and agent
organisms.

The amendments effected by the Bill do the
following. First, they apply Chapter 2 of the Criminal
Code to all offences against the Act. Second, they clarify the
defence of reasonable excuse presently contained in some sections
of the Act. Third, they identify a number of offences as offences
of strict liability.

Item 139 amends the Biological
Control Act by inserting new section 6A which
applies Chapter 2 of the Criminal Code to all offences
against the Act.

Items 140-143 re-structure
offence provisions in order to clarify their associated defence of
'reasonable excuse'. In each case, the amendments excise the
element of 'without reasonable excuse' from the offence provision
and place it in a new subsection. The reason for the excision is to
ensure that this phrase is not read as an element of the offence
(which would have to be proved by the prosecution), but is clearly
identified as a defence. These changes affect subsection 43(1),
which is an offence of failing to attend as a witness to an
inquiry, and subsection 45(1) which is an offence of refusing or
failing to be sworn or to make an affirmation, answer a question or
produce a document as required.

Items 141 and
143 insert new subsections which specify that
particular offences are offences of strict liability. A strict
liability offence is one where it is not necessary for the
prosecution to prove fault, only that the defendant engaged in the
relevant physical elements of the offence. The Criminal
Code supplies a defence of mistake of fact to a strict
liability offence.(35)Item 141
provides that an offence under subsection 43(1) is a strict
liability offence. Item 143 provides that an
offence under subsection 45(1) is a strict liability offence.

Amendments to the Dairy Produce
Act 1986

This Act created the Australian Dairy
Corporation, and deals with the marketing and export of dairy
produce and the collection of certain levies imposed in connection
with the dairy industry. The Act sets out an export control regime
for dairy products administered by the Corporation which enables it
to apply licensing, quality and minimum price requirements.

The Bill proposes the following amendments.
First, it applies Chapter 2 of the Criminal Code to all
offences against the Act. Second, it clarifies the defence of
reasonable excuse presently contained in some existing offence
provisions. Third, it identifies a number of offences as offences
of strict liability. Fourth, it amends a number of offence
provisions to remove inappropriate fault elements which are not in
harmony with the Code. Other amendments delete certain offence
provisions relating to false or misleading statements contained in
a Schedule to the Act and instead place reliance upon the standard
provisions of the Criminal Code.

Item 144 applies Chapter 2 of
the Criminal Code to all offences against the Act.

Section 54 sets out that it is an offence to
export a controlled dairy product without a licence. Items
145 and 146 amend subsection 54(1) in
order to clarify that the 'unless the person is a licensee' element
of the provision is not an element of the offence which would have
to be disproved by the prosecution.

Item 147 inserts a new
subsection 54(3) which provides that strict liability
applies to the physical element of the offence in subsection 54(2)
that regulations were made under subsection 52(1). A strict
liability offence is one where it is not necessary for the
prosecution to prove fault, only that the defendant engaged in the
relevant physical elements of the offence. The Criminal
Code supplies a defence of mistake of fact to a strict
liability offence.(36)

Items 148, 149, 150, 151
re-structure offence provisions in order to clarify their
associated defence of 'reasonable excuse'. In each case, the
amendments excise the element of 'without reasonable excuse' from
the offence provision and place it in a new subsection. The reason
for the excision is to ensure that this phrase is not read as an
element of the offence (which would have to be proved by the
prosecution), but is clearly identified as a defence.

Items 152 and 153 propose the
removal of inappropriate fault elements in offence provisions which
are inconsistent with the Criminal Code. For example,
Item 152 proposes the amendment of fault elements
of an offence provision in subsection 113(1). The amendment would
remove the word 'knowingly'. As presently worded the provisions
suggest that the fault element of knowledge applies to the physical
element of conduct in the offences. However, knowledge is not
applied by Chapter 2 of the Criminal Code to the physical
element of conduct. Removal of the word 'knowingly is thus designed
to harmonise the physical and fault elements in the offences with
Chapter 2 of the Criminal Code. Following the removal of
the word 'knowingly', the Criminal Code's default fault
elements apply to each physical element of the offences. This
default fault element is intention in the case of conduct.

Further amendments are aimed at re-organising
and reconstructing existing offence provisions in order to clarify
defences (Items 145, 146, 154, 155). These
existing defences are retained, but are placed in separate
subsections in order to ensure that various phrases are interpreted
as a defence and not as an element of the offence (which would have
to be proved by the prosecution).

Items 163 and 164 apply strict
liability by inserting new subsections 116(2),
(3) and 117(1A) which provides
that strict liability applies to the physical elements of
circumstance of the offences in subsections 116(1) and 117(1)
respectively. A strict liability offence is one where it is not
necessary for the prosecution to prove fault, only that the
defendant engaged in the relevant physical elements of the offence.
The Criminal Code supplies a defence of mistake of fact to
a strict liability offence.(37)

Amendments to the Export Control
Act 1982

This Act provides a regime for the control of
export of certain products in order to indirectly achieve various
objectives relating to primary industries. The main category of
export products which are regulated under the Act are food
products, principally in order to ensure their safety and quality,
and thereby protect Australia's export reputation.
(38)The Act has also been used to satisfy other
conditions of trade including satisfying quality standards, product
descriptions and limitations placed on market access by overseas
governments.(39)

The Act has been used in the past to control the
export of minerals and native forest woodchips from native forests
and plantations. However, during 1997 and 1998 the government
abolished export controls on all minerals except
uranium.(40) This involved lifting export controls on
LNG, coal, alumina/bauxite, and mineral sands. In relation to
forestry, the export licensing regime of the Export Control
Act and Regulations previously provided the Commonwealth with
the capacity to regulate forestry operations both in native forests
and plantations.(41) In particular, exports of hardwood
woodchips were previously controlled under the licensing regime.
These controls have been effectively removed with the amendment of
the export control regulations applying to this industry in tandem
with the progressive signing of Regional Forest Agreements for 10
forestry operations regions within four states.(42)

The Act operates by means of regulations which
prohibit the export of 'prescribed goods' from Australia. Such
goods may be exported subject to licences and the conditions
attached to them. The Act also spells out inspection
responsibilities and the authority of inspection staff to carry out
these responsibilities; and sets penalties to apply in the case of
fraud or deliberate malpractice. It imposes penalties for
non-compliance with its provisions, including for malpractice and
fraudulent behaviour. It also gives Australian Quarantine and
Inspection Service (AQIS) inspectors a number of powers including
the right to inspect goods, premises and records. In addition, AQIS
inspectors have the power, at their discretion, to issue export
certification.(43)

The amendments to the Export Control
Act proposed by the Bill propose the following. First, they
apply Chapter 2 of the Criminal Code to all offences
against the Act. Second, they replace references to certain Crimes
Act provisions. Third, they identify a number of offences as
offences of strict liability. Fourth, other offence provisions are
reorganised in order to clarify defences to remove the possibility
that elements of defences would be misinterpreted as elements of
the offence.

Item 166 amends section 3 of
the Act by removing references to sections of the Crimes Act
1914 which deal with ancillary offences and replacing them
with references to sections in the Criminal Code dealing
with these matters. The Crimes Act provisions will ultimately be
repealed on 15 December 2001. The relevant sections of the
Criminal Code commenced operation in May 2001 with the
commencement of the Law and Justice Legislation Amendment
(Application of Criminal Code) Act 2001.(44)

Item 167 applies Chapter 2 of
the Criminal Code to all offences against the Act.

Items 168 to
175 insert new subsections to expressly identify
particular offences as offences of strict liability, or as
containing elements of strict liability. This means that the
prosecution does not have to prove a fault element in relation to
all or some of the physical elements of the offences, only that the
defendant engaged in the relevant physical elements of the
offence.

Items 176 to
179 clarify defences. In all cases the phrase
'except as approved in writing by the Secretary' or its equivalent
is removed from the subsection creating the offence and transferred
to a separate subsection in order to ensure that the provision is
not misinterpreted as an element of the offence which would have to
be disproved by the prosecution.

Inspection of meat for export is carried out by the AQIS under
Government policy, AQIS is required to cost recover for the
inspection and certification services it provides to
clients.(45) AQIS provides and inspection and
certification for a range of animal and plant products exported
from Australia.

The amendments to the Collection Act
proposed by the Bill suggest the following. First, they apply
Chapter 2 of the Criminal Code to all offences against the
Act. Second, they clarify the defence of reasonable excuse
presently contained in some sections of the Act. Third, they
identify a number of offences as offences of strict liability.

Item 180 applies Chapter 2 of
the Criminal Code to all offences against the Collection
Act.

Item 181 clarifies the penalty
provisions contained within section 9 of the Act, so that it is
clear that the penalty specified applies to subsections 9(1), 9(1A)
as well as subsection 9(2). However it must be noted that the
maximum penalty provided is a dollar amount, rather than amount
indicated by penalty units. This means that the quantum of penalty
is likely to be gradually eroded by inflation, whereas the election
of a penalty unit approach would enable the indexation of the
penalty by mere amendment of the universal provision in Crimes
Act 1914, section 4AA.

Items 182, 184, 186 insert new
subsections to expressly identify particular offences as offences
of strict liability, or as containing elements of strict liability.
This means that the prosecution does not have to prove a fault
element in relation to all or some of the physical elements of the
offences, only that the defendant engaged in the relevant physical
elements of the offence. The Criminal Code supplies a
defence of mistake of fact to a strict liability
offence.(46)

For example, item 182 inserts
new subsection 9(3) which states that the offence
in section 9 is an offence of strict liability. This is an offence
of failing to keep records and failing to retain records for a
three year period. (These records relate to monthly returns
relating to prescribed commodity exports under licence).

Items 183-186 re-structure
offence provisions in order to clarify their associated defence of
'reasonable excuse'. At present there is a risk that this phrase
could be interpreted as an element of the offence, which would have
to be proved by the prosecution. The relocation of the element of
'reasonable excuse' is necessary to ensure that it is clear that
reasonable excuse is a defence.

The relevant offence provisions are contained in
subsections 10(1), and subsection 15(8) of the Collection
Act. The amendments excise the element of 'without reasonable
excuse' from the offence provision and place it in a new
subsection. The reason for the excision is to ensure that the words
are not read as an element of the offence (which would have to be
proved by the prosecution) but clearly identified as a defence.

Amendments to the Farm Household
Support Act 1992

As well as making provision for the making of
loans to certain farmers who cannot obtain a loan through normal
means, this Act also provides for the conversion, in circumstances,
of such a loan to a grant where a farmer sells his/her farm. The
objects of this Act are to provide financial assistance to farmers
who are unable to meet day-to-day living expenses and cannot get
commercial loans, and to provide financial incentives for them to
leave farming. The Act also provides for the transfer of financial
assistance to farmers who are experiencing difficulty in meeting
living expenses; and are in exceptional
circumstances.(47)

The amendments proposed by the Bill do the
following. First, they apply Chapter 2 of the Criminal
Code to all offences against the Act. Second, they identify a
number of offences as offences of strict liability. Third, they
clarify the defence of reasonable excuse presently contained in
some sections of the Act. Fourth, other offence provisions are
reorganised in order to clarify defences so that elements of
defences cannot be misinterpreted as elements of the offence.

Item 187 applies Chapter 2 of
the Criminal Code to all offences against the Act.

Items 189, 191 identify
particular offences contained within Part 7 of the Act dealing with
obligations of recipients of farm income support, as offences of
strict liability. These are the offences contained in subsections
41(5), 42(5) - of failing to comply with a notice requiring a
recipient to give notice of a specified event or change in their
personal circumstances; and of failing to comply with a notice
requiring a recipient to give particular information about a
particular matter (eg. that might affect the recipients eligibility
for support).

Items 188 to 191 clarify
defences associated with these offence provisions, so that elements
of defences cannot be misinterpreted as elements of the offence.
The existing provisions contain defences of reasonable excuse and
of being 'not capable of complying with the notice'. The amendments
re-locate these words to new subsections 41(5A),41(5B), 42(5A), and 42(5B). The
amendments are designed to ensure that the excised elements must be
interpreted as a defence and cannot be interpreted as an element of
the offence (which would have to be proved by the prosecution).

Similarly, items 192 and
193 move the element of 'reasonable excuse' from
subsection 54(7) to a new subsection [new subsection
54(7A)]. The reason for relocating the 'reasonable excuse'
defence is to ensure that it is interpreted as a defence and not as
an element of the offence (which would have to be proved by the
prosecution).

Item 193 identifies the offence
contained in subsection 54(7), of failing to comply with a general
directive to give information or produce a document to the
Secretary, as an offence of strict liability. The present maximum
penalty is listed as imprisonment for 6 months. The reader may ask
whether such a penalty is compatible with a strict liability
offence.

Note that subsection 4B(2) of the Crimes Act
1914 allows a court that convicts an individual of an offence
to impose a fine instead of, or in addition to, a term of
imprisonment. The maximum fine that a court can impose on the
individual is worked out by multiplying the maximum term of
imprisonment (in months) by 5, and then multiplying the resulting
number by the amount of a penalty unit. The amount of a penalty
unit is stated in section 4AA of the Crimes Act.

Amendments to the Fisheries
Management Act 1991

The Fisheries Management Act 1991
provides the legislative basis for the management of fisheries by
AFMA, the Australian Fisheries Management Authority. The Act deals
with management plans for fisheries, provides for statutory fishing
rights, creates offences for the taking of certain marine species
and bans driftnet fishing in the Australian Fishing Zone (AFZ).
Under the Act, the Minister has a statutory duty when making
decisions to take full account of ecological sustainability and
resource management.(48)

The Commonwealth and States are responsible for
managing fisheries within the AFZ in accordance with traditional
jurisdictional arrangements (States to three nautical miles and the
Commonwealth from three to 200 nautical miles) or arrangements
under the Offshore Constitutional Settlement (OCS). The Act applies
to Australian persons and boats inside and outside the AFZ (section
6), but does not apply to waters declared by the Governor-General
to be excepted waters (section 9).

AFMA has a responsibility to enforce the
provisions of the Fisheries Management Act 1991 and the
Torres Strait Fisheries Act 1984 through the detection and
investigation of illegal activities by both domestic and foreign
fishing boats in the Australian fishing zone (AFZ) and Commonwealth
managed fisheries. It undertakes this function in conjunction with
other relevant Commonwealth agencies such as the defence forces,
with specific compliance functions in the field being undertaken by
officers from State fisheries authorities on an agency basis.
Through these arrangements, State agencies provide the personnel
and expertise while AFMA provides overall coordination, policy
direction, technical advice and funding for these activities.

AFMA undertakes several compliance monitoring
programs to obtain information for use in routine surveillance.
These programs include prior-to-landing reports, fish receiver
reports, catch disposal records for product landed in port, and
Vessel Monitoring System position reports.

Offence provisions in the Fisheries
Management Act are contained in sections 13, 15, 57, 89(4),
93, 95-104, 107, 108, 168(2)(a) and the Regulations. The Act also
provides for the forfeiture of boats, fishing equipment and catch
under section 106.

The proposed amendments to the Fisheries
Management Act 1991 contained in the Bill apply Chapter 2
(other than those parts of the Code that deal with principles of
corporate criminal responsibility) to offences under the Act.
Second, they identify a number of offences as offences of strict
liability. Third, they clarify the defence of reasonable excuse
presently contained in some sections of the Act. Fourth, the Bill
seeks to clarify a number of offence provisions by means of
alteration of certain fault elements (ie 'clarifying fault
element'). Fifth, the Bill seeks to correct a number of aspects of
existing offence provisions which are not in harmony with the
approach taken by the Criminal Code, by altering the fault
elements of these offence provisions (ie. amendment of
inappropriate fault elements).

Item 194 applies Chapter 2 of
the Criminal Code to all offences against the Act (except
those relating to corporate criminal responsibility) by inserting
new section 6A. Section 164 of the FMA sets out
specific principles of corporate criminal responsibility, and is
not amended by the Bill. These principles specify the scope of
liability of directors, servants and agents of a body
corporate.

The existing provision differs from the
principles set out in Chapter 2.5 of the Criminal Code in
that it does not include concepts contained there of 'due
diligence' and 'corporate culture'.

Items 195-198, 202, 204, 206, 209, 210,
213, 215, 217, 220 insert new subsections to expressly
identify particular offences under the Fisheries Management
Act as offences of strict liability, or as containing elements
of strict liability. This means that the prosecution does not have
to prove a fault element in relation to all or some of the physical
elements of the offences, only that the defendant engaged in the
relevant physical elements of the offence. For example,
item 195 relates to the offence in section 13(1)
of engaging in driftnet fishing within the AFZ with a maximum
penalty of 500 penalty units, ie $55 000. The equivalent
offence by a body corporate is 2500 penalty units or $275 000.
(One penalty unit is equivalent to $110 under Crimes Act
1914, section 4AA).

The amendments proposed in item
199 are aimed at clarifying fault element in the offence
provision in section 57, of making a false entry in the Register of
Statutory Fishing Rights or of tendering in evidence a document
falsely purporting to be an extract from the Register. The item
replaces 'wilfully' with 'intentionally' as the former term is not
a fault element used in the Criminal Code.

Item 200 amends subsection
84(7) of the Act and item 221 amends paragraph
164(9)(b) by removing references to sections of the Crimes Act
1914 which deal with ancillary offences and replacing them
with references to sections in the Criminal Code dealing
with these matters. The Crimes Act provisions will ultimately be
repealed on 15 December 2001. The relevant sections of the
Criminal Code commenced operation in May 2001 with the
commencement of the Law and Justice Legislation Amendment
(Application of Criminal Code) Act 2001.(49)

Items 201- 204, 207, 208, 212-217, 219
and 220 re-structure offence provisions in order to
clarify their associated defence of 'reasonable excuse'. At present
there is a risk that the provision could be interpreted as an
element of the offence, which would have to be proved by the
prosecution. The relocation of the element of 'reasonable excuse'
is necessary to ensure that it is clear that reasonable excuse is a
defence.

It must be noted that this Bill does not take
advantage of the opportunity to increase penalties under the Act.
Nor does it introduce a regime of civil penalties, similar to those
contained in the Environment Protection and Biodiversity
Conservation Act 1999. The introduction of a civil penalties
regime may be of benefit - as civil offences involve a less onerous
burden of proof ('on the balance of probabilities' only) and would
be likely to involve fewer technical difficulties with evidential
issues.

An issue raised by non-government organisations
working on the issue of illegal fisheries by foreign 'flag of
convenience' boats, particularly in relation to poaching of
patagonian toothfish in the Southern Ocean,(50) is the
need to prevent boats or companies who have been involved in
poaching in the past from successfully applying for a 'foreign
fishing licence' under section 34 of the Act. One solution
suggested is to include a provision within that section enabling
AFMA to investigate the prior record of both the company and the
boats involved. A precedent for such a provision exists within
section 136(4) of the Environmental Protection and Biodiversity
Conservation Act 1999 which enables the Minister to consider
'the person's history in relation to environmental matters.'

Amendments to the Horticulture
Marketing and Research and Development Services (Repeals and
Consequential Provisions) Act 2000

This Act provided for the transition from the
Australian Horticultural Corporation (AHC), the Horticultural
Research and Development Corporation (HRDC) and the Australian
Dried Fruits Board (ADFB) to a horticultural industry services
corporation.

It provides for:

abolition of the AHC, HRDC and ADFB

transfer of assets, liabilities and staff from the AHC, HRDC
and ADFB to the new industry services body

continuation of the existing export control system for another
two years, and

repeal of some legislation and consequential amendments to
other legislation.

The proposed amendment to the Horticulture
Marketing and Research and Development Services (Repeals and
Consequential Provisions) Act contained in the Bill apply Chapter 2
(other than those parts of the Code that deal with principles of
corporate criminal responsibility) to offences under the Act.
Second, it identifies certain offences as offences of strict
liability. Third, it inserts a provision which clarifies that in
raising a particular defence of reasonable excuse, the defendant
bears an evidential burden.

Item 222 amends the Act by
inserting new subsection 45(4) which applies
Chapter 2 of the Criminal Code to all offences against the
Act, with the exception of the principles of corporate criminal
responsibility contained in Chapter 2.5 of the Code. Existing
section 120 relating to corporate criminal responsibility is not
amended by the Bill.

Other tasks performed by item
222 include applying strict liability and imposing an
evidential burden on a defendant.

Amendments to the Imported Food
Control Act 1992

This Act provides for increased inspection of
imported foods, the destruction or re-export of such food that
falls below Australian standards and the charging of importers to
cover inspection costs. The Act created new inspection arrangements
for imported food.

The key features of the Act include:

all imported foods are liable to point of entry checks;

imported food products must meet Australian standards in terms
of safety and cleanliness, compliance with limits for residues of
chemicals and heavy metals, and truth in labelling, and

foods in high and medium risk categories are to be monitored
and extensively sampled to ensure compliance with the Australian
Food Standards Code.

The proposed amendments to the Imported Food
Control Act 1992 contained in the Bill apply Chapter 2 (other
than those parts of the Code that deal with principles of corporate
criminal responsibility) to offences under the Act. Second, they
identify a number of offences as offences of strict liability.
Third, they clarify the defence of reasonable excuse presently
contained in some sections of the Act. Fourth, the Bill seeks to
clarify a number of offence provisions through alteration of
certain fault elements.

Item 223 amends the Act by
inserting new section 6A which applies Chapter 2
of the Criminal Code to all offences against the Act, with
the exception of the principles of corporate criminal
responsibility contained in Chapter 2.5 of the Code. Existing
section 33 relating to corporate criminal responsibility is not
amended by the Bill.

Items224, 225, 226,
227, 228, 229, 231, and 232 re-structure offence
provisions in order to clarify their associated defence of
'reasonable excuse'. At present there is a risk that the provision
could be interpreted as an element of the offence, which would have
to be proved by the prosecution. The relocation of the element of
'reasonable excuse' is necessary to ensure that it is clear that
reasonable excuse is a defence.

Items 227, 230 and 233 insert
new subsections which identify particular offences as offences of
strict liability. A strict liability offence is one where it is not
necessary for the prosecution to prove fault, only that the
defendant engaged in the relevant physical elements of the offence.
The Criminal Code supplies a defence of mistake of fact to
a strict liability offence.(51)

Item 224 proposes replacing the
fault element of knowledge in subsection 20(8) with the fault
element of intention, because the present provision is inconsistent
with the position of the Criminal Code of not applying the fault
element of knowledge to a physical element consisting of conduct.
Subsection 20(8) is an offence of failing or refusing to comply
with a requirement - following the making of an imported food
inspection advice - requiring the destruction or re-exportation of
food which failed inspection tests.

Amendments to the Loan (Income
Equalization Deposits) Act 1976

This Act provides a vehicle for the delivery of
exceptional circumstances payments to primary producers. It
operates in conjunction with the Loan (Drought Bonds) Act
1969 and the Income Tax Assessment Act 1936. Income
Equalisation Deposits and farm Management Bonds were replaced by
the commercially available Farm Management Deposits Scheme which
came into effect in April 1999. At that date there were 12,600
holders of IED/FMBs with deposits totalling $375
million.(52)

The amendments proposed by the Bill propose the
following. First, they apply Chapter 2 of the Criminal
Code to all offences against the Act. Second, they replace
references to certain Crimes Act provisions. Third, they identify a
number of offences as offences of strict liability. Fourth, they
clarify the defence of reasonable excuse presently contained in
some sections of the Act.

Item 235 amends subsection 3(1)
of the Act by removing references to sections of the Crimes Act
1914 which deal with ancillary offences and replacing them
with references to sections in the Criminal Code dealing
with these matters.

Item 236 applies Chapter 2 of
the Criminal Code to all offences against the Act, by
inserting new section 5A.

Items 237, 238, and 239 insert
new subsections to expressly identify particular offences as
offences of strict liability, or as containing elements of strict
liability. This means that the prosecution does not have to prove a
fault element in relation to all or some of the physical elements
of the offences, only that the defendant engaged in the relevant
physical elements of the offence. The Criminal Code
supplies a defence of mistake of fact to a strict liability
offence.(53)Item 237 provides that an
offence under subsection 28(1) is a strict liability offence.
Item 238 provides that an offence under subsection
29(1) is a strict liability offence. Subsection 29(1) creates
offences of bringing prohibited meat into, or removing it from,
abattoirs; slaughtering prohibited animals; and processing
prohibited meat. Item 239 provides that an offence
under subsection 33(2) is a strict liability offence. Subsection
33(2) is an offence of failing to return an identity card upon
retirement as an authorised officer under the Act.

Items 240-243 clarify defences
associated with these offence provisions, so that elements of
defences cannot be misinterpreted as elements of the offence. The
existing provisions contain a defence of having the written
approval of the Secretary. Items 240-243 re-locate
the words 'except as approved in writing by the Secretary' or their
equivalent to new subsections 35(1AA) and 35(1B).
The amendments are designed to ensure that the excised elements
must be interpreted as a defence and cannot be interpreted as an
element of the offence (which would have to be proved by the
prosecution).

Amendments to the Plant
Breeder's Rights Act 1994

This Act replaced the Plant Variety Rights
Act 1987. A plant variety rights scheme has operated in
Australia since the enactment of the Plant Variety Rights Act
1987. The purpose of Plant Breeder's Rights (PBR) is to grant
a proprietary right to the breeder of new varieties of certain
plants. Under the legislation, breeders of new plant varieties can
claim the exclusive rights to sell, or licence others to sell,
plants or seeds of varieties they have developed.

In short, the amendments contained in the Bill
apply Chapter 2 (other than those parts of the Code that deal with
principles of corporate criminal responsibility) to offences under
the Plant Breeder's Rights Act. Second, they identify a
number of offences as offences of strict liability. Third, the Bill
seeks to correct a number of aspects of existing offence provisions
which are not in harmony with the approach taken by the
Criminal Code, by altering the fault elements of these
offence provisions.

Item 244 amends the Act by
inserting new section 9A which applies Chapter 2
of the Criminal Code to all offences against the Act, with
the exception of the principles of corporate criminal
responsibility contained in Chapter 2.5 of the Code. Existing
section 76 relating to corporate criminal responsibility is not
amended by the Bill.

Item 246 inserts a new
subsection to identify a particular physical element of an offence
as an offence of strict liability. Where strict liability applies
it is not necessary for the prosecution to prove fault, only that
the defendant engaged in the relevant physical element of the
offence. The Criminal Code supplies a defence of mistake
of fact in relation to that physical element.(54)Item 246 inserts new subsection
74(1A) which states that strict liability applies to the
physical element of circumstance in the offence in subsection
74(1).

Items 245 and 247 delete the
words 'intentionally or recklessly'. Under the Criminal
Code, 'recklessness' is an inappropriate fault element for a
physical element consisting of conduct. Intention will be supplied
as a default fault element by operation of the Criminal
Code.

This Act introduced a system of uniform
collection procedures for certain levies and charges and allowed
new levies and charges to be made by regulation. One of the
principal effects of the Act was to do away with the practice of
having a separate levy or charge collection Act for each levy or
charge imposed. The passage of this Act meant that the collection
of levies and charges could be governed under the main Act by
regulation. However, primary industry Acts which impose a levy or
charge could not be consolidated in the same way because of section
55 of the Constitution, part of which provides `...Laws imposing
taxation, except laws imposing duties of customs or of excise,
shall deal with one subject of taxation only...'.

The amendments of the Primary Industries
Levies and Charges Collection Act proposed in the Bill apply
Chapter 2 (other than those parts of the Code that deal with
principles of corporate criminal responsibility) to offences under
the Act. Second, they identify a number of offences as offences of
strict liability. Third, they replace references to certain Crimes
Act provisions. Fourth, they clarify the defence of reasonable
excuse presently contained in some sections of the Act. Fifth,
Fifth, the Bill seeks to correct a number of offence provisions
which are not in harmony with the approach taken by the
Criminal Code through the deletion of inappropriate fault
elements, thus altering the fault elements of these offence
provisions.

Item 248 amends section 4(3) of
the Act by removing references to sections of the Crimes Act
1914 which deal with ancillary offences and replacing them
with references to sections in the Criminal Code dealing
with these matters.

Item 249 amends the Act by
inserting new section 5A which applies Chapter 2
of the Criminal Code to all offences against the Act, with
the exception of the principles of corporate criminal
responsibility contained in Chapter 2.5 of the Code. Existing
section 25 relating to corporate criminal responsibility is not
amended by the Bill.

Items 250, 251, 253, and 255
insert new subsections to expressly identify particular offences as
offences of strict liability, or as containing elements of strict
liability. This means that the prosecution does not have to prove a
fault element in relation to all or some of the physical elements
of the offences, only that the defendant engaged in the relevant
physical elements of the offence. The Criminal Code
supplies a defence of mistake of fact to a strict liability
offence.(55)

Items 252-255 re-structure
offence provisions in order to clarify their associated defence of
'reasonable excuse'. At present there is a risk that the provision
could be interpreted as an element of the offence, which would have
to be proved by the prosecution. The relocation of the element of
'reasonable excuse' is necessary to ensure that it is clear that
reasonable excuse is a defence.

Item 256 proposes the deletion
of inappropriate fault elements contained within offence provisions
in subsections 24A(3) and (4) of the Act. The Act presently applies
intention and recklessness in relation to the physical element of
conduct which is incompatible with the application of the
Criminal Code. It is not necessary to state 'intention'
explicitly as a fault element because intention is the applicable
fault element by default for any physical elements of conduct
(whereas recklessness is the applicable fault element by default
for any physical elements of result or circumstance).

Amendments to the Torres Strait
Fisheries Act 1984

The Torres Strait Fisheries Act 1984,
administered by AFMA, regulates fishing in the waters between
Australia and Papua New Guinea, in accordance with agreements made
in the Torres Strait Treaty regarding sovereignty and maritime
boundaries.

The Torres Strait Treaty, ratified in 1985
between Australia and PNG, sets out an area known as the Torres
Strait Protected Zone (TSPZ). The Treaty sets out a framework to
guide both countries in providing for the management, conservation
and sharing of fisheries resources in and around the TSPZ. The
Treaty also requires both governments to protect and preserve the
marine and terrestrial environment of the area. It also sets out
guidelines for the enforcement of fisheries
legislation.(56)

In Australian waters, both traditional fishing
and commercial fisheries are managed by the Torres Strait Protected
Zone Joint Authority (PZJA) under which Commonwealth and Queensland
regulatory agencies are jointly responsible for the sustainable
management of the Torres Strait fishery. The PZJA, established
under the Torres Strait Fisheries Act 1984, comprises the
Federal and State (Queensland) Ministers responsible for fisheries.

Both the Treaty and the Act address the issue of
traditional fishing by the indigenous inhabitants of the Torres
Strait. The Treaty, and consequently the Act, have objectives
including the preservation of 'the traditional way of life and
livelihood of traditional inhabitants, including their rights in
relation to traditional fishing'.(57) The Act sets out a
requirement that those administering it must have regard to these
objectives.

Brief Summary of proposed
amendments

The proposed amendments to the Torres Strait
Fisheries Act 1984 proposed in the Bill apply Chapter 2 (other
than those parts of the Code that deal with principles of corporate
criminal responsibility) to offences under the Act. Second, they
identify a number of offences as offences of strict liability.
Third, they replace references to certain Crimes Act provisions.
Fourth, they clarify the defence of reasonable excuse presently
contained in some sections of the Act. Fifth, the Bill seeks to
clarify through alteration some fault elements in a number of
offence provisions. Finally it seeks to clarify one particular
defence in order remove potential ambiguity which might prove
adverse to the prospects of success of a prosecution.

Item 257 amends the Act by
inserting new section 4A which applies Chapter 2
of the Criminal Code to all offences against the Act, with
the exception of the principles of corporate criminal
responsibility contained in Chapter 2.5 of the Code. Existing
section 53A relating to corporate criminal responsibility is not
amended by the Bill. The heading in the explanatory memorandum
associated with this item is not complete, and may mislead the
casual reader.(58)

Item 260 amends subsection
42(6A) of the Act by removing references to sections of the
Crimes Act 1914 which deal with ancillary offences and
replacing them with references to sections in the Criminal
Code dealing with these matters.

Items 258, 259, 264, 265, 267, 269, 270,
271, 272, 273, 274 insert new subsections to expressly
identify particular offences as offences of strict liability, or as
containing elements of strict liability. This means that the
prosecution does not have to prove a fault element in relation to
all or some of the physical elements of the offences, only that the
defendant engaged in the relevant physical elements of the offence.
The Criminal Code supplies a defence of mistake of fact to
a strict liability offence.(59)

Amendments to the Wheat
Marketing Act 1989

This Act deals with the export of wheat and
creates the Wheat Export Authority. Its functions are to control
the export of wheat from Australia; and to monitor AWB
(International) Ltd's performance in relation to the export of
wheat and examine and report to wheat growers on that
performance.(60) Under the Act (section 57) it is an
offence of export wheat without the written consent of the
Authority. The reader should note that the specified maximum
penalty attached to this offence is still expressed in dollar terms
rather than penalty units.

The Bill proposes a
further step in the process of simplifying and renovating the
Commonwealth criminal law which was commenced by the Criminal
Code Act 1995 setting out general principles of criminal
responsibility. With the application of the Criminal Code to
portfolio legislation, gradually, these principles will apply to
every federal offence. One of the guiding concepts applied by the
uniform Commonwealth Criminal Code, as expressed in the second
reading speech for the Act in 1995, was that 'those accused of
federal offences will be dealt with under the same principles-no
longer will people charged in different states and territories be
treated differently from one another.'(61)

In summary, this Bill raises the question of
whether the proposed amendments to offence provisions should be
viewed as a 'policy-free zone', being merely minor or technical
amendments. A contrary view may be that whilst in the process of
amending legislation to make it consistent with the Code, it would
be logical and appropriate to review legislation in greater depth
to ensure that the range of criminal, civil and administrative
penalties they impose are adequate and sufficient to achieve
compliance and enforcement goals. An argument in response is likely
to be that it may be more appropriate to wait for a thorough
reworking and review of legislation rather than to attempt ad hoc
improvement of offence provisions such as levels of penalty and
corporate criminal responsibility.

This particular proposed legislation also
indirectly raises important policy issues - involving issues such
as fisheries management and the protection of Australia's primary
industries and export industries through quarantine inspections,
food quality and labelling standards. It is important that
compliance with legislation be encouraged by ensuring that offence
provisions exert sufficient general deterrence upon the regulated
community.

One of the key policy issues which arises in
relation to this Bill is the manner in which it proposes to apply
the Criminal Code provisions regarding corporate criminal
responsibility (Part 2.5). In essence, the Bill proposes to apply
Part 2.5 of the Code, except where the legislation in question
already contains provisions regarding corporate responsibility. For
example, regarding proposed amendments to the Fisheries
Management Act 1991, the Explanatory Memorandum states:

This Act is one which contains specific
provisions relating to corporate criminal responsibility. As the
Bill is intended to ensure that agriculture, fisheries and forestry
portfolio legislation continues to operate in the same way after
the Criminal Code applies to it, the specific corporate criminal
responsibility provisions in the Act are retained by excluding the
operation of Part 2.5 of the Criminal Code.(62)

However, the reader is entitled to inquire as to
the policy justification for the decision that the Bill is to apply
the Code to all legislation, but that it is not to apply a key part
of the Code relating to corporate criminal liability. On this
basis, the reader may ask why was Part 2.5 of the Code ever
introduced, if there was no intention that it would ultimately
apply to some Commonwealth legislation ?

In the Second Reading Speech for the
Criminal Code Bill1995, the then
Attorney-General made the following comments which may be relevant
to the question of corporate criminal liability:

By the end of five years, these principles will
apply to every federal offence unless there is need to vary these
by reason of special considerations applying to particular
offences.(63)

The question that arises is whether corporate
criminal responsibility was indeed such a case involving 'special
considerations'. Some have argued that this speech authorised or
justified the decision to exclude the application of the Code's
principles for corporate criminal responsibility (contained in Part
2.5 of the Code Act) from existing legislation if that legislation
already contained provisions governing corporate liability.

Another argument advanced by officers for not
applying Part 2.5 was that 'competing and conflicting regimes
cannot be kept in place'. However, it is not evident that this is
would be the effect of the legislation if Part 2.5 were applied and
existing provisions for corporate liability were deleted. The Bill
already takes the general approach of 'repealing some
offence-creating provisions, which duplicate general offence
provisions in the Criminal Code.'(64)

It must be noted that an approach of partially
excluding the application of Part 2.5 of the Code has already been
taken in relation to other legislation such as the Environment
and Heritage Legislation Amendment (Application of Criminal Code)
Act 2001.

Nevertheless, the Parliament is entitled to ask
'What is the policy rationale for excluding the corporate criminal
responsibility provisions of the Code ?' Why rely on provisions
that pre-date the Code ? It may be the case that it would be easier
for regulatory agencies such as AFMA and AQIS to achieve a
prosecution under the provisions of Part 2.5 of the Code regarding
corporate criminal liability, than under older provisions, because
the new legislation (Part 2.5 of the Code Act) introduces new
concepts of 'corporate culture' and due diligence. Members could
ask whether this decision amounts to a decision not to take the
opportunity to improve legislation, particularly a decision not to
take advantage of the improvements contained in the Criminal
Code.

A theme running through the debates on recent
bills which have applied the Criminal Code in other
portfolios has been an expression of concern by some members over
clauses which proposed the identification of certain existing
offence provisions as being offences of strict liability. It is
possible that similar arguments might be raised in relation to this
Bill.

Although the Senate Standing Committee for
Scrutiny of Bills has not, at the time of writing, considered this
particular Bill, it has passed comment on a number of other similar
Bills, regarding provisions which proposed the identification of
offences as offences of strict liability. The Committee has
typically made comment along the following lines:

The Committee notes that, in some cases, the
effect of this bill will be to change the nature of some
provisions. The Committee, therefore, seeks the Minister's
advice as to whether this bill converts an offence which was
previously not one of strict liability into a strict liability
offence.

In other words the Committee has typically
sought confirmation that the Bills applying the Criminal
Code create no new offences of strict liability. It appears
that the Committee has been particularly concerned about the civil
liberties implications of making offences strict liability
offences. It is currently holding an inquiry into absolute and
strict liability offences in Commonwealth legislation, a matter
which was referred to the Committee in July 2001 by the Senate. The
terms of reference are:

The application of absolute and strict liability
offences in Commonwealth legislation, with particular reference
to:

(a) the merit of making certain offences ones of
absolute or strict liability;

(b) the criteria used to characterise an
offence, or an element of an offence, as appropriate for absolute
or strict liability;

(c) whether these criteria are applied
consistently to all existing and proposed Commonwealth offences;
and

(d) how these criteria relate to the practice in
other Australian jurisdictions, and internationally.

On the other hand, the Explanatory Memorandum
for this Bill states that 'The amendments will ensure that the
relevant offences continue to have much the same meaning and
continue to operate in much the same way as they do at
present'.

In particular cases, the public interest in
various matters, such as quarantine and environment protection, is
perhaps best served by offences or elements of offences attracting
strict liability. This is because if such offences were not
classified as strict liability, the prosecution would be required
to prove that the defendant possessed the requisite fault element
(eg. knowledge, intention, recklessness, or negligence) for every
element of the offence - an onerous task, which in some
circumstances may prove impossible due to practical difficulties in
gathering evidence. An example is in relation to offences by
foreign fishing vessels in the Australian Fishing Zone (AFZ) under
the Fisheries Management Act sections 99-104. For example, if a
knowledge requirement were applied to what are presently strict
liability offences, such as section 100 ('using a foreign boat for
fishing in the AFZ') then it would become extremely difficult to
successfully prosecute under the legislation.

Those cautious about the application of strict
liability provisions could note that for every clause where this
Bill identifies an offence as being one of strict liability, the
odds are extremely strong that all such offence provisions would
already be interpreted by courts as such, without the need for an
explicit label indicating the category of the offence. Thus the
Bill is doing little more than identifying existing strict
liability provisions, by effectively attaching a label to them.

It is arguable that the removal of existing
strict liability provisions would defeat the capacity of
Commonwealth regulatory agencies such as the Australian Fisheries
Management Authority (AFMA), or AQIS to efficiently enforce the
legislation which they administer. Fewer prosecutions would be
commenced, fewer of these prosecutions would succeed, and the
legislation would exert less of a deterrent effect.

Penalty levels

Another aspect of the Bill which raises policy
questions is its implicit decision not to take the opportunity to
increase penalties contained in AFFA portfolio legislation to
ensure they exert a strong general effect of deterrence. One
commentator on the issue of regulatory enforcement cited a judicial
observation from a Canadian occupational health and safety
judgement that 'if the regulations were not enforced by the use of
sanctions, they would come to be perceived not as regulatory
requirements but merely as statements of
aspiration.'(65)

In the specific context of this Bill, it is
relevant to consider two examples. First, the maximum penalty
within provisions that are being amended in the Agricultural and
Veterinary Chemicals legislation are in the order of 30 penalty
units (i.e., $3300). A second example is the offence in section 9
of the Australian Wine and Brandy Corporation Act 1980 of
entering into a contract for wine export without the approval of
the AWBC. This offence attracts a maximum penalty of $6000. It is
arguable that a penalty imposed under this provision is unlikely to
be sufficient to deter a calculating 'would-be' offender from
breaching the provision if it is in his/her economic interests to
do so. In fact, the Explanatory Memorandum itself states in
relation to this particular offence provision 'In the commercial
setting, these penalties are not large.'(66)

In penalising breaches of 'regulatory
legislation' there are two opposing considerations which must be
balanced in imposing penalties, and these were summarised by
Brennan J of the High Court in Walden v. Hensler:

[W]hen a law proscribes conduct which an
ordinary person without special knowledge of the law might engage
in the honest belief that he is lawfully entitled to do so, the
secondary deterrent purpose - i.e., the purpose of educating both
the offender and the community in the law's proscriptions so that
the law will come to be known and obeyed - must be invoked to
justify the imposition of a penalty for breach. In such a case,
care must be taken in imposing a penalty lest the offender be made
to shoulder an unfair burden of community
education.(67)

However, given the small stature of some of the
penalties retained in the AFFA portfolio legislation some may draw
the conclusion that there is little danger of exerting a deterrent
effect which would impose an excessive burden on particular
defendants.

Also notable is the apparent decision in the
Bill not to standardise the penalties in the portfolio legislation
to replace references to dollar amounts, where they occur, with
references to a specified number of penalty units.(68)
Where the maximum penalty provided is a dollar amount, rather than
amount indicated by penalty units, the quantum of penalty is likely
to be gradually eroded by inflation. On the other hand, the
election of a penalty unit approach would enable the indexation of
the penalty by mere amendment of the universal provision in
Crimes Act 1914, section 4AA.

Most States and Territories have participated in MCCOC. MCCOC
consists of senior officers from most Australian jurisdictions with
responsibility for advising their Attorney-General on criminal law
matters.

Although the default fault element of recklessness will apply
to the proscribed conduct in the offences, it will still be
possible to prove that fault element by proving knowledge (or
intention) as well as by proving recklessness-see subsection
5.4(4), Criminal Code.

Explanatory Memorandum, p. 48.

Criminal Code, section 6.2.

Although the default fault element of recklessness will apply
to the proscribed conduct in the offences, it will still be
possible to prove that fault element by proving knowledge (or
intention) as well as by proving recklessness-see subsection
5.4(4), Criminal Code.

Although the default fault element of recklessness will apply
to the proscribed conduct in the offences, it will still be
possible to prove that fault element by proving knowledge (or
intention) as well as by proving recklessness-see subsection
5.4(4), Criminal Code.

The Law and Justice Legislation Amendment (Application of
Criminal Code) Act 2001 received assent on 6.4.01 and
commenced operation on 24 May 2001.

Sharp, R. (1999), 'Review of Australia's National Environmental
Impact Assessment Processes in the Control of Alien Species in
order to prevent Biodiversity Loss', 16(1) Environmental and
Planning Law Journal 92 at 96.

Criminal Code, section 6.2.

Criminal Code, section 6.2.

Criminal Code, section 6.2.

According to an AQIS document: 'The Export Control Act
was enacted in 1982 in a period of crisis. The origins of the
crisis were the export to the USA of kangaroo and horsemeat
labelled as beef. Limited quantities of meat prepared as pet food
also entered the export chain. The crisis created a public outcry
in Australia. A severe loss of confidence in Australia's inspection
arrangements seriously threatened continued access for Australian
meat to the US and UK markets. This, in turn, reflected adversely
on the status of the Australian government's guarantee for all
exports of food and agricultural products, not just meat.' Internet
URL
www.affa.gov.au/corporate_docs/publications/word/quarantine/mid/98-11.doc
; accessed 23.7.01

The export licence regime provided the means for triggering the
operation of Commonwealth environmental impact assessment of
forestry and other development proposals under the now repealed
Environment Protection (Impact of Proposals) Act 1974
(replaced by the Environment Protection and Biodiversity
Conservation Act 1999).

Only one RFA agreement remains unsigned to date, for the South
East Queensland CRA region. The Southern NSW RFA was signed on 24
April 2001. An AFFA document describes the progressive removal of
the controls: 'In March 1997, the Commonwealth made the Export
Control (Regional Forest Agreements) Regulations (the RFA
regulations), which provides that if an RFA (within the meaning of
the 1996 HWC regulations) is in force for a region (within the
meaning of the 1996 HWC regulations), hardwood woodchips (also
within the meaning of the 1996 HWC regulations) derived from native
forest in that region and other unprocessed wood (eg. logs,
billets) and softwood woodchips not derived from plantations in
that region (otherwise controlled by the 1986 UPW regulations), are
not prescribed goods under the 1996 HWC regulations or the 1986 UPW
regulations, respectively. These provisions ensured that, as an RFA
came into force for a region, all export controls on woodchips and
other unprocessed wood from that region (except that sourced from a
plantation in the region) were lifted. The RFA regulations
effectively removed the need to obtain either an RFA licence under
the 1996 HWC regulations (to export native forest hardwood
woodchips) or an unprocessed wood licence under the 1986 UPW
regulations (to export native forest material other than hardwood
woodchips).'

James Prest
20 August 2001
Bills Digest Service
Information and Research Services

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